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Judge OKs executive privilege in drone FOIA case

By JOSH GERSTEIN

06/18/2015 07:09 PM EDT

Despite a federal appeals court ruling two years ago ordering the Central Intelligence Agency to be more forthcoming about what records it has related to the use of armed drones to kill terror suspects, a federal judge ruled again Thursday that the spy agency could keep secret nearly all information related to its drone activities and the legal basis for them.

U.S. District Court Judge Rosemary Collyer also specifically upheld the Obama Administration's assertion of executive privilege to withhold documents recording interactions between executive branch agencies and close advisers to President Barack Obama. The claim could conceivably pertain to President George W. Bush as well, but the details of the CIA's assertion were submitted in a classified court filing and the judge did not elaborate on the situation.

Collyer, who in 2011 threw out the Freedom of Information Act lawsuit brought by the American Civil Liberties Union only to see it reinstated by the D.C. Circuit in 2013, said Thursday that the CIA was under no obligation to make any disclosures beyond a very limited amount of information turned over after the appeals court decision.

Following that ruling, the CIA released a Justice Department "white paper" describing the circumstances under which the CIA could use lethal force against alleged Al Qaeda leader Anwar Al-Awlaki. No other substantive documents were released, though the agency did turn over a list of legal opinions and intelligence-related records it was withholding—a list the CIA had refused to produce during the earlier round of litigation before Collyer.

But Collyer—a George W. Bush appointee— rejected the ACLU's bid to receive the underlying documents, even in part. And she declined the group's bid to order the records produced to her for a secret review in camera, so that she could verify that the claimed exemptions for classified information and legal privilege were valid.

The ACLU pointed to a variety of official disclosures about the drone program, but in her 34-page opinion (posted here) the judge said those were not sufficient to require the government to reveal the information in the records the civil liberties group sought.

"ACLU has merely pointed to alleged disclosures of vaguely similar information, but has failed to identify officially disclosed information that 'precisely track[s]' or 'duplicates' the information it has requested," the judge wrote.

"The Court concludes that ACLU has not cleared the 'high hurdle' of demonstrating that any of government statements to which it points is as specific as the details on the charts and compilations it seeks, or that such statements match the withheld information....A FOIA plaintiff such as ACLU is held to a stringent standard because 'the Government’s vital interest in information relating to national security and foreign affairs dictates that it must be,'" Collyer added, quoting a D.C. Circuit ruling from 1993 in an unrelated case.

The assertion of executive privilege (technically the "presidential communications privilege") in the drone documents dispute may have been superfluous since the judge found that the records in question could be withheld because they are classified on national security grounds or contain intelligence information the CIA is required by law to protect.

ACLU Attorney Jameel Jaffer said the group plans to appeal, again.

"It's a disappointing and dangerous ruling because the court effectively leaves it to the CIA to decide what information the public should have about the CIA's drone program--the court leaves it to the CIA to decide, for example, whether the public should know anything about civilian casualties," Jaffer said in a comment emailed to POLITICO.

"The Freedom of Information Act was meant to make government agencies more accountable to the public, but this decision does the opposite. We intend to press on, though. A unanimous panel of the DC Circuit overturned the district court's earlier ruling in favor of the CIA, and we are optimistic the appeals court will overturn this one, too," the ACLU lawyer added.

The ACLU and the New York Times have had more success with a similar, parallel FOIA suit in New York City seeking different drone-related records.

UPDATE (Friday, 7:22 A.M.): This post has been updated with comment from the ACLU.